Nenno v. State
| Decision Date | 24 June 1998 |
| Docket Number | No. 72313,72313 |
| Citation | 970 S.W.2d 549,1998 WL 331283 |
| Parties | Eric Charles NENNO, Appellant, v. The STATE of Texas |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted in January 1996 of capital murder, committed on or about March 23, 1995. Tex. Penal Code § 19.03(a)(2). 1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g). 2 Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises nineteen points of error. We will affirm.
In point of error two, appellant contends that the evidence is legally insufficient to support the jury's answer to the future dangerousness special issue. 3 A legal sufficiency review of that issue is governed by the standard set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); the question is whether, in the light most favorable to the prosecution, any rational trier of fact could have returned an affirmative answer. Moore v. State, 935 S.W.2d 124, 126 (Tex.Crim.App.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1711, 137 L.Ed.2d 835 (1997). The facts of the offense, alone, can be sufficient to support an affirmative answer to the special issue. Walbey v. State, 926 S.W.2d 307, 310 (Tex.Crim.App.1996).
The facts of the present offense were egregious. Appellant raped and choked to death a seven-year-old girl. However, we need not determine whether such facts, by themselves, would support an affirmative answer to the future dangerousness issue. The State also presented expert testimony that appellant would be a threat to society. This testimony came from Kenneth Lanning, a Supervisory Special Agent in the Behavioral Science unit of the FBI who specialized in studying the sexual victimization of children. From information given about appellant, Lanning concluded that appellant was a pedophile. Lanning testified that such a person was difficult to rehabilitate. After being given a lengthy hypothetical matching the facts shown by the evidence, Lanning testified that an individual matching the hypothetical "would be an extreme threat to society and especially children within his age preference." This evidence, along with the circumstances of the crime, is sufficient for a rational jury to conclude that appellant poses a future danger to society. Point of error two is overruled.
In point of error three, appellant contends that the evidence is legally insufficient to support the jury's answer to the mitigation special issue. 4 But this Court does not conduct a sufficiency review of that issue. McGinn v. State, 961 S.W.2d 161, 166 (Tex.Crim.App.1998). Point of error three is overruled.
In point of error ten, appellant contends that the trial court erred in failing to draft findings of fact and conclusions of law regarding his motion to suppress. We granted the State's motion to abate, and the case was remanded to the trial court to make such written findings and conclusions. The trial court has done so, and the written findings and conclusions have been forwarded to this Court as a supplemental transcript. Because appellant obtained the appropriate relief on this matter, point of error ten is now moot.
In points of error seventeen through nineteen, appellant contends that the trial court erred in overruling his motion to suppress. He contends that the trial court's admission of his oral statements to Detective Taber violated Article 38.22 and that his oral and written statements were involuntary under the United States Constitution.
a. Facts 5
Detective Johnson received the defendant's name as a possible suspect and referred it to Detectives Wedgeworth and Taber for a follow-up investigation. Detectives Wedgeworth and Taber went to the defendant's home at 17602 Bullis Gap several times on the afternoon of March 25, 1995. The defendant lived one to one-and-a-half blocks from where the complainant had last been seen. On the third visit, the defendant--dressed only in a white bath towel around his waist--finally answered the door. The defendant indicated he was willing to talk about the missing child and permitted the detectives to come inside. The defendant appeared very cooperative and willing to talk. When asked whether he knew the child, the defendant became visibly nervous and shook and denied knowing or seeing her ever before. The defendant permitted the detectives to search his house and Detective Wedgeworth conducted a superficial search but found nothing out of the ordinary.
The detectives asked the defendant why somebody in the neighborhood asked for him to be checked out and the defendant replied there was an incident in the spring when he was accused of attempting to lure a child into his house and pull off her pants. The defendant was visibly shaking and appeared extremely nervous. Detectives Wedgeworth and Taber visited with the defendant at his house for a total of approximately ten minutes. The detectives then asked the defendant if he would come to the command post and make a written statement and the defendant stated he had no problem with that. The detectives informed the defendant that several blocks away a trailer had been set up as a command post. The detectives then returned to the command post. The detectives made no promises or threats to the defendant during this initial encounter.
Five to ten minutes later, the defendant arrived at the command post. Detective Taber led the defendant into a small interview room. Detective Taber read the defendant the following rights from the blue card provided by the Harris County District Attorney's Office:
You have the right to remain silent and not make any statement at all. Any statement you make may be used against you and probably will be used against you at your trial. You have a right to have an attorney present to advise you prior to and during any questioning. If you're unable to hire a lawyer, you have the right to have a lawyer appointed to advise you prior to or during any questioning. You may terminate the interview at any time.
Detective Taber asked the defendant if he understood the warnings and the defendant indicated he understood. Detective Taber asked the defendant if he wanted to waive his rights and talk about the missing child and the defendant agreed to talk to the detectives. The defendant appeared to understand the course of the conversation. The conversation was relaxed, very soft-spoken, and very low-tone. Detective Taber spoke with the defendant for approximately an hour. During the interview, the defendant was offered something to eat and drink. Detective Taber made it clear from the beginning that the defendant was not under arrest and that he could go at any time.
When Detective Taber asked the defendant if he knew why he was there, the defendant replied: "You think I'm a suspect in the little girl case where she's missing." Detective Taber asked the defendant why he thought he would be a suspect; the defendant stated because of his past incident involving trying to get a little girl in the residence and removing her pants and because he liked children. When asked what the defendant had done the night the complainant had disappeared, the defendant stated he arrived home, changed clothes, went outside, talked to his neighbor, and then went inside. The defendant stated he had had a six-pack of beer. When asked if there was any reason why a neighbor would say they had seen the defendant on the same street from which the complainant had disappeared, the defendant responded: "Well, maybe I could have been outside my house by the fence, but I just don't remember." Detective Taber asked the defendant again the same question about would it have been possible for him to have been down the street and if he had heard about the missing girl; the defendant stated: "Well, it might have been possible but I don't remember."
Detective Taber asked the defendant what he thought had happened to the child and the defendant said he thought somebody had kidnapped, raped, and killed her. Detective Taber asked the defendant what kind of person he thought would do something like that to a little girl and the defendant said someone like him. When asked why he responded in that manner, the defendant answered because of the other incident, the other child, that he had always thought about being with children and that he had fantasized about them sexually. The defendant said he fantasized or dreamed about a former girlfriend and her child and teaching the child about sex and having sex with the child. The defendant stated he masturbated several times a week while fantasizing and masturbated while looking at the neighborhood children through his window.
Detective Taber asked the defendant what he thought someone would do with the body of a child if they had killed the child. The defendant said that after they were finished with the body of the child, the person would probably take the child and dump their body on a construction site on 290 just before Hockley and dump the child's clothes at another location. When asked whether he had ever thought about doing something like that, the defendant stated he had thought about it before but he had never done it. Detective Taber asked the defendant what he thought should happen to a person responsible for attacking a little girl and the defendant said the person should be put to death. Detective Taber asked the defendant what he thought the result of the police...
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